STATE OF NEW-YORK. 


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No. 272. 

4*l\s 

is 33 

IN ASSEMBLY, 

March 4, 1839. 

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REPORT 

Of the select committee, on a resolution from the 
Senate, relative to the appointment of an United 
States Senator. 

Mr. Lawrence, from the select committee to which was refered the 
resolution of the honorable the Senate, proposing “ that Samuel Beards¬ 
ley be, and he is hereby chosen a Senator to represent this State in the 
Congress of the United States, in the place of Nathaniel P. Tallmadge, 
whose term of service will expire on the third day of March next,” 

REPORTS: 

Your committee have delayed their report in the hope that it would 
become unnecessary, by the action of the Honorable the Senate upon 
the bill, which passed this House on the eighth day of February last, 
providing for the event which has happened, of a failure by the two 
Houses to meet together and compare their nominations of a Senator to 
Congress. 

That bill was transmitted to and received by the Senate before the 
resolution referred to your committee came to this House. That comity 
which should always prevail between the two Houses, and the presump¬ 
tion which should always be indulged, so long as it can be, that each 
house will perform every duty assigned to its members by their consti¬ 
tuents, induced your committee to postpone any report until abundant 
opportunity should be given to the Senate to act upon the bill sent to 
them by this House. Your committee also indulged the hope, that time 
would soothe the feelings which have been excited on the occasion of 

[Assem. No. 272.] 1 






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[Assembly 

choosing a Senator to Congress, and that calm and deliberate reflection 


would bring all who are conscientiously disposed to perform an impera¬ 
tive duty, to a final agreement in the mode of discharging it. Sufficient 
time having already elapsed and no action having been had on the said bill, 
the committee deem it due to themselves, to the House and their con¬ 
stituents, to state some of the reasons why they cannot concur with 
the Senate in their resolution. 



The resolution referred to your committee is, in itself strong evidence 
of the benign influence of time and reflection, upon the conflicting views 
and opinions of men. For it appears by the journals of the Senate 
which your committee have searched, that on the fifth of February last, 
the day provided by law for the appointment of a Senator in Congress, 
the members of the Senate were so unfortunately divided in their opi¬ 
nions, respecting the qualifications of any person to represent the State 
in that exalted station, that eighteen different gentlemen were nominat¬ 
ed, so that owing to this extraordinary diversity of opinion, no nomi¬ 
nation was made by that Honorable body, and for that reason it refused 
to meet this House to proceed to a joint ballot. Only four days after¬ 
wards, it appears from the resolution referred to your committee, these 
discrepancies of opinion or of feeling have yielded to the deep sense of 
official duty, to the republican obligation of obedience to the public 
will, or to the desire to have this State fully represented in the Na¬ 
tional Councils, or to all these considerations combined; and the same 
members whose differences had been carried to such a lamentable ex¬ 
tent, united in the choice of the gentleman named in the resolution as 
the candidate on the part of the Senate. It is much to be regretted, 
that the pure principles, to which we have alluded as having produced 
this harmonious result, had not produced their full influence and induced 
the Honorable the Senate, to offer to this House the candidate whom 
that body put in nomination, in the manner prescribed by that law, 
which has been in force during nearly fifty years; which stands at this 
moment unrepealed on our statute book, and which is as obligatory upon 
the members of the Legislature as any other law of the land. 

Instead of nominating the gentleman named in their resolution, and 
thus giving this House the equal privilege of nominating a candidate on 
its part; the Senate have sent a proposition absolutely and directly to 
appoint him a Senator in Congress. The effect of this proceeding ob¬ 
viously is to degrade this House from the level of perfect equality with 
the Senate, in which it is placed by the Constitution, and to give to 
the Senate the attitude of a superior tribunal, prescribing to an inferior, 


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No. 272.] 

the individual and the only individual whom it will consent to elect. 
There is something so offensive in this view of the subject, and so re¬ 
pugnant to the great principles of republicanism, which we all profess to 
maintain, that your committee cannot believe that it was deliberately 
and maturely considered by that Hohorable body. 

Those who laid the foundation of our glorious institutions intended 
to substitute a rule for determining differences between those having equal 
rights, entirely different from any that existed in the old world. They 
had no confidence in the efficacy of the hereditary wisdom of a prince 
or of a set of nobles to compose such differences, and trusted still less 
to the power of the sword. They resolved that the majority should 
govern, and they applied the principle to every case that could occur. 

The same principle was, at the very commencement of our own State 
Government, applied to a case where the action of a legislative body, 
consisting of two houses was necessary to a result. 

By the 30th article of the former Constitution, adopted in 1777, dele¬ 
gates to Congress were directed to be chosen as follows: the Senate and 
Assembly were each openly to nominate the requisite number, after 
which they were to meet together, and those persons named in both lists 
were to be delegates; and out of the persons whose names were not on 
both lists one half were to be chosen, by the joint ballot of the Senators 
and members of Assembly so met together. 

The patriotic framers of the Constitution conceived it more impor- 
portant to ensure a representation of the State in the Congress than to 
attempt to preserve a check on the immediate representatives of the 
people in the House of Assembly, by means of the Senate voting as a 
separate branch. 

They applied the great democratic principle of a majority for that 
purpose, doubtless on the presumption that there was likely to be as 
much intellegence and patriotism in one body as the other, and they 
therefore brought the Senators and members of Assembly together as 
individuals, and gave to the majority of the meeting thus constituted 
the power of choosing delegates. 

After the adoption of the Constitution of the United States, providing 
for the election of Senators to Congress by the Legislature of each State, 
and giving to the several Legislatures the power of prescribing “ the 
times, places and manner of holding elections for Senators and Repre- 


4 [Assembly 

sentatives, (section 4 of article 1,) a law was passed by the Legislature 
of this State, on the 14th January, 1793, directing that Senators to 
Congress should always be chosen in the same manner that delegates to 
Congress are directed to be chosen by the Constitution. The vital im¬ 
portance of the legislative duty to keep this State represented in the 
Senate is here exhibited by the provision which referred it to a majority 
of the members individually to decide by their ballots, when the two 
houses disagreed; and here again is the majority principle applied to se¬ 
cure effectually the performance of that great duty. It is remarkable 
that when this act was under consideration in the Senate Mr. Schuyler 
made a motion to expunge the words, “ in the same manner that dele¬ 
gates to represent this State in the Congress of the United States of Ame¬ 
rica are directed to be appointed by the Constitution of this State f and to 
substitute the following in their stead, viz: u By concurrent resolutions 
of the Senate and Assembly .” 

This motion was negatived; see Senate Journals of December 7, 
1792. 

The Senators of that day deliberately and intentionally surrendered 
the power which separate action by the respective houses would give to 
the Senate, of compelling the selection of its candidates or suffering the 
State to go unrepresented, and they surrendered it in obedience to the 
fundamental principle of our institutions, that the will of the majority 
should prevail. 

This bill, after passing both houses, was submitted to. the council of 
revision “ for their revisal and consideration,” whose special duty it was 
to determine whether it was proper to become a law. 

The history of the past shews that the council examined all bills pre¬ 
sented to them with particular reference to their constitutionality; and 
this bill was returned by them to the Senate with a message that it did 
not appear improper to them that it should become a law. The coun¬ 
cil at this time consisted of George Clinton the Governor, Robert R. 
Livingston chancellor, Robert Yates chief justice, and John Sloss Ho¬ 
bart, John Lansing, jr. and Morgan Lewis, justices of the supreme 
court. 

On the 20th of March, 1801, this act was re-enacted, having been 
revised by James Kent and Jacob Radcliff, two of the justices of the 
supreme court, and having been approved by a council of revision then 
consisting of George Clinton Governor, John Lansing, jr. chancellor, 
Morgan Lewis chief justice, James Kent and Jacob Radcliff, justices 


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No. 272. | 

ol the supreme court. The same act was comprised in the Revised Laws 
of 1813, prepared by John Woodworth, a justice of the supreme court, 
and William P. Van Ness, subsequently district judge of the United 
States. 

At this time the council of revision consisted of Daniel D. Tompkins 
Governor, John Lansing, jr. chancellor, James Kent chief justice, 
Smith Thompson, Ambrose Spencer, William W. Van Ness and Jo¬ 
seph C. Yates, justices of the supreme court. 

Whether the old acts collected in that revision were submitted to the 
council does not appear; they probably were not; still with such men 
to watch the progress of laws, it is nor to be supposed that if they en¬ 
tertained any doubts of its propriety or constitutionality it would be suf¬ 
fered to pass without opposition. The Revised Statutes of 1830 con¬ 
tain the law now in force on this subject. It provides explicitly for the 
election of a Senator by joint ballot in case of disagreement between the 
two houses. It is not necessary to refer to the distinguished character 
of the revisors who prepared that law and gave it the sanction of their 
recommendation,—they are well know. It was passed by a Legislature 
composed of some of the soundest men in the State, and it was approv¬ 
ed by De Witt Clinton, then Governor of this State. 

Such is the history of the law on this subject, and such are some of 
the authorities in favor of its propriety and constitutionality. It is pro¬ 
per to add that there has been but one uniform and uninterrupted prac¬ 
tice under it, from the time of its first passage in 1793, a period of for¬ 
ty-six years, during which all our Senators in Congress have been cho¬ 
sen under its provisions, without a doubt ever having been intimated 
until now of its full and literal compliance with the Constitution. 

Your committee acknowledge themselves to be of that class who re¬ 
gard a contemporaneous, or nearly contemporaneous, exposition of a con¬ 
stitutional provision, by the practice of those who were familiar with the 
reasons for its adoption, continued uninterruptedly for nearly half a cen¬ 
tury by our most distinguished jurists and statesmen of all parties and 
at all times, as entirely conclusive of the true construction to be given it. 

If this rule be not sustained there will be no end to dispute; no man 
will know what his rights and duties are; for each generation will con¬ 
ceive itself wiser than its predecessors, and constitutions, instead of be¬ 
ing barriers to the lust of power and a shield to the people, will become 
he sport of alternate partisan triumphs. 



6 [Assembly 

A power claimed by the States and the very last they would surren¬ 
der, that of authorizing the emission of bills of credit, by chartered in¬ 
stitutions, rests at this moment more upon the uniform practice under 
the Constitution than upon any provision it contains, and upon the prac¬ 
tice in the opinion of many enlightened men, contrary to the plain words 
of that instrument. We utterly deny therefore that any citizen is at li¬ 
berty to construe the laws or the Constitution of our country as he may 
choose to understand them. He is bound by them as they are interpret¬ 
ed by the judicial and other appropriate tribunals of the land; and if that 
interpretation has assumed the form of a statute, it is the solemn duty 
of every good citizen to obey it, at least until its unconstitutionality has 
been declared by the judiciary. If any other principle should be recog¬ 
nized in the administration of our laws, the libeller who chose to un¬ 
derstand that part of the Constitution which secures the liberty of the 
press, as authorizing its abuse to licentious purposes; and the felon 
whose heart and intellect are so depraved as to claim an equal partici¬ 
pation in his neighbor’s property, under the plea that it was an unalien¬ 
able birth-right, and indeed all offenders of every hue and description, 
must be exonerated from punishment, and society itself must come to 
an end. 

For ourselses, therefore, we are quite content to leave the constitu¬ 
tionality of the law in question, upon the uniform and invariable inter¬ 
pretation it has received not only in our own State, but by the Senate 
of the United States also; where from the foundation of the govern¬ 
ment, Senators elected by joint ballot of the two Houses of their State 
Legislatures, have taken their seats without question and held them with¬ 
out dispute. But where it is so easy to point to the very letter of the 
authority, it ought not to be omitted. 

The clause of the Constitution of the United States has already been 
quoted, which provides that a the times, places and manner of elect¬ 
ing Senators shall be prescribed by the Legislatures thereof.” The man¬ 
ner of their election is therefore within the control of the electing body. 
The Senators of each State u are to be chosen by the Legislature there¬ 
of.” The ordinary course of legislative action is by each chamber 
passing separately and independently on every proposition. But this 
is by no means the only course. The practice of the Legislatures of 
several States to assemble the two Houses in joint meeting, particularly 
to make appointments to office, which is continued in some of them to 
this day, was familiar to those who framed the Constitution; and it was 
well known that the mode of proceeding in legislative appointments va- 


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No. 272.J 

ried in the different States. When, therefore, the Constitution gave to 
the State Legislatures the power of regulating the manner of choosing 
a Senator, it obviously intended to leave to each the right of pursuing 
its own practice or adopting any other. It is believed to be an error at 
the foundation of the doubts now expressed, to suppose that legislative 
action must necessarily be had in separate chambers acting independ¬ 
ently. In ancient times, the Lords and Commons of England assem¬ 
bled together and passed laws, It always was and must be competent 
to a Legislature, as to any other body or tribunal vested with power, 
to prescribe its own mode of performing its duties, where no constitu¬ 
tional provision interferes. Our State Constitution provides for the 
passing of bills by separate Houses, but contains no inhibition either di¬ 
rectly or by implication against any other mode of performing any other 
legislative duty. 

With the unqualified affirmative power given by the Constitution of 
the United States, and in the absence of any restriction by any other 
competent authority; to doubt the power of a Legislature to provide 
for the election of a Senator, by a ballot of the whole Legislature, of 
all the members composing it, would seem to be a refinement of con¬ 
stitutional scruples without a parallel; a refinement, not to advance the 
great end and purpose of vesting the power so as to secure a represen¬ 
tation in all contingencies, but to defeat that purpose, obstruct the ope¬ 
ration of our system of government, baffle the public will and aban¬ 
don our position as a sovereign State, in the council of the States. An 
omission to elect Senators to Congress, by a majority of the States 
would prevent a quorum of that body from assembling, and would vir¬ 
tually dissolve the Union. 

Such a result should not be left to any chance, and much less should 
its occurrence be facilitated by refined construction, that in itself excites 
all the elements of hostility, without providing the means of allaying it. 

It has seemed to your committee, that every dictate of patriotism, all 
regard to the memory and practice of the founders of our republican 
government, every desire to prevent disorganization and confusion, and 
preserve the institutions of our country in their beautiful symmetry, 
would induce all reflecting men to discard doubts of such a character, 
and which, like others recorded in our history, may be followed in future 
times of violent political excitement, when some expiring party that 
may hereafter exist, being driven from power by an indignant people, 
may seek by such miserable pretexts to prolong a feeble existence, or 


8 [Assembly 

to gratify an insatiable revenge at the expense of patriotism, and the 
most solemn obligations of an oath. 

If there be no doubt of the constitutionality of the law in question, 
then there can be none of its binding force upon all whose conduct it 
regulates; so long as it remains a law, it must be obeyed, even by law¬ 
makers. They have no exemption in our land, from the common duty 
of all citizens, TO OBEY THE LAW AS IT IS. Their only re¬ 
medy, if they dislike it, is to repeal it. No such proposition is made, 
and the 23d Section, of Title 6, of Chap. 6, of the First Part of the 
Revised Statutes, is at this moment in as full force as it was on the day 
it passed. It provides the mode of electing a Senator whenever one 
is to be chosen. 

By passing the resolution referred to your committee, this House will 
disobey that law, and openly and palpably violate its provisions. It 
prescribes that the Legislature shall elect a Senator in a different mode 
than by concurrent resolutions. Your committee have come to the fol¬ 
lowing conclusions: 

1st. That the Legislature possesses the power of regulating the manner 
in which a Senator to Congress is to be chosen; and that there is nothing 
in the Constitution or in the nature of the duty, to require that the man¬ 
ner shall be, by each house acting separately, but that it may be in any 
manner which the Legislature may prescribe. 

2d. That such a law being now in force, regulating the manner, 
which is not in the least affected by the circumstance that the prescrib¬ 
ed time for its performance has elapsed, no other mode can be pursued 
by the Legislature, until the statute referred to, is repealed. 

Your committee, therefore, recommend to the House the adoption of 
the following resolution: 

Resolved , That the resolution of the Senate, proposing, u if the As¬ 
sembly concur, that Samuel Beardsley be, and he is hereby chosen a 
Senator to represent this State in the Congress of the United States, in 
the place of Nathaniel P. Tallmadge, whose terra of service will expire 
on the third day of March next,” be returned to the Honorable the Se¬ 
nate, with a respectful message, that so long as the 23d section of the 
4th Article and 6th Title of Chapter 6, of Part 1st, of the Revised 
Statutes remains in force, the Assembly cannot proceed to choose a Se¬ 
nator to Congress in any other manner than that provided by said sec¬ 
tion; and that it does not deem itself legally competent to act in any 
way upon the proposed concurrent resolution of the Honorable the Se- 


No. 272.] 


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nate, above recited. That although the day assigned by that law for 
the appointment of a Senator in Congress, has passed, no doubt is en¬ 
tertained on the part of the Assembly, that it is competent to the Le¬ 
gislature to make a valid election in pursuance of its provisions. That 
the Assembly having already made a nomination, will meet the Senate 
on any day to compare its nomination with the nomination of the Se¬ 
nate, and in case of disagreement, proceed to the election by ballot of 
all the members of both Houses; but that if it is believed by the Senate 
that such an election would be invalid by reason ttf the day assigned in 
the law having passed, the Assembly has discharged its responsibility in 
regard to that contingency, by having passed and sent to the Senate for 
concurrence, a bill providing for an election on a future day, in the on¬ 
ly manner ever known and hitherto used in this State. 


[Assem. No. 272.] 


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